Kelsen's Theory of Unamendability

Podcast

Play an AI-generated podcast conversation about this lesson

Questions and Answers

According to Schmitt, what is the primary determinant of constitutional amendments?

A fundamental political decision that cannot be reduced to legal logic. (correct)

The consistent interpretation of previous legal precedents.

Adherence to the formal legal procedure outlined in the constitution.

The hierarchical relationship between norms as prescribed by a Grundnorm.

How does Kelsen's view of unamendable provisions differ from Schmitt's?

Kelsen sees it as stemming from a foundational norm (Grundnorm), while Schmitt sees it as based on political realities. (correct)

Kelsen focuses on the historical contingencies of the law while Schmitt focuses on formal validity of the law.

Kelsen sees it as primarily deriving from political will, while Schmitt sees it as a legal conclusion.

Kelsen believes it is flexible based on public opinion, while Schmitt believes it is stable.

Which aspect of a legal system did Kelsen prioritize in his analysis?

The historical context and societal impact on legal decisions.

The concrete political will in shaping a constitution.

The formal, logical structure and hierarchical relationships between norms. (correct)

The implications of public opinion on the validity of the law.

What potential problem does Schmitt's emphasis on political decision-making introduce to the law?

It may lead to instability or arbitrariness if the process is not controlled. Signup and view all the answers

What tension does the debate between Kelsen and Schmitt highlight regarding the law?

The tension between formal validity and political influence. Signup and view all the answers

According to Kelsen, from where does the authority of a constitution's unamendable provisions originate?

From a superior norm, potentially the Grundnorm. Signup and view all the answers

What concept did Kelsen introduce to explain the basis of all legal norms, including the constitution?

The Grundnorm Signup and view all the answers

How did Kelsen view the relationship between the Grundnorm and constitutional amendments?

The Grundnorm sets the limits for valid constitutional amendments. Signup and view all the answers

What was Schmitt’s main criticism of Kelsen's theory of constitutional unamendability?

It was too reliant on abstract rules and neglected the political reality. Signup and view all the answers

According to Schmitt, what does a constitutional order require beyond formal validity?

An authority that can interpret and uphold the constitution. Signup and view all the answers

According to Schmitt, what is the fundamental nature of a constitutional amendment?

Fundamentally a political action. Signup and view all the answers

According to Schmitt, what is a potential source of constitutional authority beyond formal validity?

Political and historical factors and societal understandings. Signup and view all the answers

What central aspect of legal systems was Kelsen most concerned with when addressing the issue of unamendability?

The logical structure and hierarchical character. Signup and view all the answers

Study Notes

Kelsen's View on Unamendability

Kelsen viewed constitutional unamendability as a specific case of a broader principle of legal validity.
A constitution's validity derives from a higher norm.
Unamendable provisions gain validity from a norm superior to the amending process.
Kelsen proposed a Grundnorm, a fundamental norm, underlying all legal norms within a system.
The Grundnorm establishes the legality of constitution-making and amendment processes.
Unamendable provisions are rooted in the Grundnorm, making them foundational.
These provisions limit the amendment process, which itself adheres to the Grundnorm's parameters.
Kelsen focused on the principle of legality and a consistent legal order.
His formalism emphasized the structured, hierarchical nature of legal systems.

Schmitt's Critique of Kelsen's View

Schmitt criticized Kelsen's theory for overlooking the practical realities of constitutional life.
He argued that Kelsen's focus on formal validity was overly abstract.
Schmitt emphasized political decision-making's role in constitutional order.
He criticized Kelsen's disregard for the practical application and interpretation of constitutional norms.
Schmitt argued that a constitution requires an external authority—beyond the constitution—for interpretation and enforcement.
This authority might be drawn from political, historical, or societal considerations.
He considered the amendment process a political act, not merely a legal one.
Schmitt believed unamendability may arise from historical and societal understandings, rather than just formal validity.
Schmitt viewed political decisions—like those concerning amendment—as irreducible to legal logic.

Key Differences Summarized

Kelsen focused on legal systems' formal structure; Schmitt on political decision-making in constitutional affairs.
Kelsen saw unamendable provisions as rooted in the Grundnorm; Schmitt argued they arise from political realities.
Kelsen emphasized formal validity and interpretation; Schmitt emphasized the political will.

Implications of the Different Perspectives

Kelsen's view offers stability, but might not reflect evolving political needs.
Schmitt's perspective fosters flexibility but could be unstable if not managed.
The Kelsen–Schmitt debate highlights tensions between a rule-based legal order and political realities.
These perspectives illustrate differing views on the relationship between law and politics concerning constitutional unamendability.

Studying That Suits You

Use AI to generate personalized quizzes and flashcards to suit your learning preferences.

Description

Explore Kelsen's perspective on constitutional unamendability, where he connects it to higher legal norms and the concept of Grundnorm. This quiz delves into the implications of unamendability in constitutional law and its foundational role within a legal system.